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United States Government Accountability Office
GAO Report to the Chairman, Committee on
Homeland Security and Governmental
Affairs, U.S. Senate
October 2012
RELIGIOUS
COMPENSATORY
TIME
Office of Personnel
Management Action
Needed to Clarify
Policies for Agencies
GAO-13-96
October 2012
RELIGIOUS COMPENSATORY TIME
Office of Personnel Management Action Needed to
Clarify Policies for Agencies
Highlights of GAO-13-96, a report to the
Chairman, Committee on Homeland Security
and Governmental Affairs, U.S. Senate
Why GAO Did This Study What GAO Found
Since 1978, federal agencies have All seven of the agencies in GAO’s review—U.S. Customs and Border Protection
been required to allow employees to (CBP), Federal Aviation Administration, Federal Bureau of Investigation, Federal
adjust their work schedules to engage Bureau of Prisons, U.S. Immigration and Customs Enforcement (ICE), Internal
in religious observances, to the extent Revenue Service (IRS), and Transportation Security Administration—have
that such modifications do not interfere written policies supporting an employee’s ability to earn and use compensatory
with the efficient accomplishment of an time off for religious observances. GAO identified several similarities in agency
agency’s mission. As requested, this policies and supporting documents in the categories of: (1) employee eligibility,
report identifies the similarities and (2) applicability across geographic locations, (3) schedule planning, and (4)
differences in policies of selected
implementation. These similarities generally support greater flexibility for
agencies concerning compensatory
employees to seek compensatory time off for religious observances. For
time off for religious observances for
law enforcement officers (LEO) and air
example, all agencies have policies that apply to all occupational groups of the
transportation safety and security agencies’ geographical locations and facilities, regardless of a facility’s size or
(ATSS) personnel and describes their the number of employees who work there. In most cases, officials said the
rationale for adopting the policies. agencies followed existing federal rules when developing policies and that they
GAO selected seven agencies for this wanted to provide their employees with additional scheduling flexibility. However,
review based on their substantial IRS introduced additional controls to monitor excessive accumulation of unused
concentrations of LEO and ATSS compensatory time off for religious observances based on findings by IRS’s
personnel. GAO evaluated the Inspector General.
agencies’ policies and interviewed
agency officials. GAO identified differences in the way agencies administer their policies on
compensatory time off for religious observances in five different categories: (1)
What GAO Recommends caps on the number of pay periods to earn and use compensatory time off for
GAO recommends that OPM (1) religious observances, (2) repaying compensatory time off for religious
establish time frames for finalizing observances that was taken in advance, (3) the forms or other documentation
proposed revised regulations for required to make the request and providing a reason for request, (4) other types
compensatory time off for religious of schedule adjustments referenced in the policy, and (5) disposition of unused
observances and (2) work with CBP to compensatory time off for religious observances. For example, IRS has a 120-
ensure its policies and practices on the day cap and ICE has a six pay period cap for earning and using compensatory
disposition of unused compensatory time off for religious observances.
time off for religious observances is in
compliance with statute and OPM’s Some of the differences are within the discretion of the agency and may reflect
implementing regulations. OPM agreed individual needs of the agency, but in one area the differences in policy may
with the overall findings and reflect a lack of clarity in Office of Personnel Management (OPM) regulations.
recommendations. The Department of For example, CBP policy states that unused compensatory time off for religious
Homeland Security (DHS) agreed with
observances will be converted to regular compensatory time, which according to
the recommendation and will work with
an OPM official, is not authorized under statute or OPM’s implementing
OPM. OPM, DHS, and the
Departments of Justice, regulations. In OPM’s view, compensatory time off for religious observances and
Transportation, and Treasury provided regular compensatory time are different forms of compensatory time off that are
technical comments that GAO separately authorized; serve different purposes; and are subject to differing
incorporated where appropriate. conditions for earning, using, and retaining, as well as liquidating. OPM officials
stated they are updating regulations that they believe will address the disposition
of unused compensatory time off for religious observances, but have not set a
timetable for completing the proposed revised regulations. Without such
clarification on the disposition of unused compensatory time off for religious
observances in OPM’s regulations, agencies may have policies that are not
View GAO-13-96. For more information,
contact Yvonne D. Jones at (202) 512-2717 or
consistent with OPM’s views on the proper disposition of unused compensatory
jonesy@gao.gov. time off for religious observances.
United States Government Accountability Office
Contents
Letter 1
Background 3
Some Agency Policies on Compensatory Time off for Religious
Observances May Not Be Subject to or Consistent with OPM
Regulations or Guidance; Rationales for Policies Vary 8
Conclusion 18
Recommendations for Executive Action 18
Agency Comments 19
Appendix I Objectives, Scope, and Methodology 21
Appendix II Comments from the Office of Personnel Management 23
Appendix III Comments from the Department of Homeland Security 26
Appendix IV GAO Contact and Staff Acknowledgment 27
Tables
Table 1: Law Enforcement Officers and Air Transportation Safety
and Security Personnel in Selected Agencies 7
Table 2: Agency Policies Display Differences in Several Categories 12
Page i GAO-13-96 Religious Accommodations
Abbreviations
ATSS air transportation safety and security
BOP Federal Bureau of Prisons
CBA collective bargaining agreement
CBP U.S. Customs and Border Protection
DHS Department of Homeland Security
DOJ Department of Justice
EEO equal employment opportunity
EEOC U.S. Equal Employment Opportunity Commission
FAA Federal Aviation Administration
FBI Federal Bureau of Investigation
FLRA Federal Labor Relations Authority
FLSA Fair Labor Standards Act
ICE U.S. Immigration and Customs Enforcement
IRS Internal Revenue Service
LEO law enforcement officer
LWOP leave-without-pay
NTEU National Treasury Employees Union
OPM U.S. Office of Personnel Management
TIGTA Treasury Inspector General for Tax Administration
Treasury Department of Treasury
TSA Transportation Security Administration
This is a work of the U.S. government and is not subject to copyright protection in the
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without further permission from GAO. However, because this work may contain
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Page ii GAO-13-96 Religious Accommodations
United States Government Accountability Office
Washington, DC 20548
October 12, 2012
The Honorable Joseph I. Lieberman
Chairman
Committee on Homeland Security and Governmental Affairs
United States Senate
Dear Mr. Chairman:
Since 1978, federal statute has required agencies to allow employees the
option to engage in overtime work and receive equal compensatory time
off to make up for lost time due to religious observances. The statute
provides that agencies may make exceptions when necessary to
efficiently carry out the mission of the agency. Further, federal
antidiscrimination laws promote a federal workplace that is fair, equitable,
and free from discrimination and retaliation, including as it relates to
religious beliefs, practices, and observance.
In response to your interest in federal agencies’ religious accommodation
leave policies for federal law enforcement officers (LEO) and air
transportation safety and security (ATSS) personnel, you asked us to
identify the similarities and differences in policies of selected agencies
concerning compensatory time off for religious observances for these
groups of personnel and determine the agencies’ rationale for adopting
their policies. 1
We selected seven federal agencies with significant numbers of LEO and
ATSS personnel based on their U.S. Office of Personnel Management
(OPM) occupational group and description, including personnel in the
investigation and transportation groups and the correctional officer series.
Six selected agencies each had over 10,000 employees in these
1
For purposes of this report, we are defining “law enforcement officer” as an individual
authorized to perform any of four specific functions: (1) conduct criminal investigations, (2)
execute search warrants, (3) make arrests, or (4) carry firearms. In addition, some of
these law enforcement officers are responsible for care and custody of convicted
offenders. We defined ATSS personnel to include Transportation Security Administration’s
federal air marshals and passenger and baggage screeners/handlers, or transportation
security officers, and Federal Aviation Administration’s air traffic controllers, based on the
U.S. Office of Personnel Management’s occupational groups and descriptions as well as
agency job descriptions and other information from agency websites.
Page 1 GAO-13-96 Religious Accommodations
occupational groups based on recent data from OPM’s Central Personnel
Data File. These included three components in the Department of
Homeland Security (DHS)—U.S. Customs and Border Protection (CBP),
U.S. Immigration and Customs Enforcement (ICE), and Transportation
Security Administration (TSA); two components in the Department of
Justice (DOJ)—Federal Bureau of Investigation (FBI) and Federal Bureau
of Prisons (BOP); and one agency in the Department of Transportation—
Federal Aviation Administration (FAA). 2 We selected the seventh agency,
the Internal Revenue Service (IRS) in the Department of Treasury
(Treasury), because of their unique role as criminal investigations of tax
matters.
In evaluating agency policies, we reviewed agency documentation, such
as guidance, and collective bargaining agreements to identify similarities
and differences in the policies. We reviewed applicable federal statutes
and regulations, as well as proposed regulations, and executive branch
policies and guidance. Since OPM is responsible for administering the
statute on compensatory time off for religious observances and the U.S.
Equal Employment Opportunity Commission (EEOC) is responsible for
enforcing the federal antidiscrimination statute requiring religious
accommodations, we interviewed officials from each on their duties and
responsibilities concerning compensatory time off for religious
observances for federal employees and reviewed applicable EEOC
cases. We developed a structured interview instrument to discuss agency
policies on schedule adjustment for religious accommodation, and the
rationale for such policies, with human resource or human capital officials,
field supervisors, and civil rights or diversity officials, from the selected
agencies and their “parent” departments. We also interviewed LEO
association representatives as well as union representatives about
whether, from their viewpoint and the viewpoint of those they
represented, there were any problems or concerns with schedule
accommodation or compensatory time for religious observance at the
selected agencies.
We conducted this performance audit from December 2011 through
October 2012 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit to
2
For purposes of this report, we are referring to both agencies and components as
“agencies”.
Page 2 GAO-13-96 Religious Accommodations
obtain sufficient, appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives.
Federal law has prohibited religious discrimination in employment since
Background the enactment of the Civil Rights Act of 1964. 3 Title VII of the act, as
amended, provides that discrimination against any employee or applicant
for employment based upon his or her religion is prohibited, and that
employers must accommodate religious beliefs, practices, and
observances, unless doing so would pose an undue hardship on the
employer. 4 In addition, Congress enacted Title IV of the Federal
Employees Flexible and Compressed Work Schedules Act of 1978, which
provided the authority for federal employees to work overtime and receive
equal compensatory time off in order to meet requirements for religious
observance, which is the focus of this report. 5 This statute, which was
codified in 5 U.S.C. § 5550a (hereinafter “section 5550a”), directed OPM
to “prescribe regulations providing for work schedules under which an
employee whose personal religious beliefs require the abstention from
work during certain periods of time, may elect to engage in overtime work
for time lost for meeting those religious requirements.” Enactment of the
statute permits federal employees covered under section 5550a to
exercise the tenets of their faiths without being forced to lose a portion of
3
Pub. L. No. 88-352, 78 Stat. 241 (July 2, 1964).
4
See 42 U.S.C. § 2000e-2 and § 2000e-16 which prohibit discrimination in nonfederal and
federal employment, respectively, on the basis of religion. See also, 42 U.S.C. § 2000e(j),
which defines “religion” to include the requirement to reasonably accommodate.
5
Pub. L. No. 95-390, § 401, 92 Stat. 755 (Sept. 29, 1978).
Page 3 GAO-13-96 Religious Accommodations
their pay or annual leave. FAA and TSA are not subject to 5 U.S.C. §
5550a nor OPM’s regulations implementing section 5550a. 6
Issued in 1978, OPM regulations provide that: 7
• employees may elect to work overtime for time lost for meeting
religious requirements;
• to the extent that such modifications in work schedules do not
interfere with the efficient accomplishment of an agency’s mission, the
agency shall in each instance afford the employee the opportunity to
work compensatory overtime and grant the requested compensatory
time off for religious observances;
• employees may work compensatory overtime either before or after the
grant of compensatory time off for religious observance;
• if compensatory time off was granted in advance, the time should be
repaid by compensatory overtime work within a “reasonable amount
of time”; and
• premium pay provisions for overtime work do not apply to
compensatory overtime work performed under this authority. 8
In addition, OPM issued guidance to federal agencies to supplement the
regulations providing that:
• agencies should require employees to submit a written request for an
adjusted work schedule in advance;
6
Under 49 U.S.C. § 40122(g), FAA was authorized to develop a personnel management
system under which only specified provisions of Title 5 of the U.S. Code would apply in
order to provide for greater flexibility in, among other things, the hiring and compensation
of personnel. Therefore FAA is excluded from many provisions of Title 5 including section
5550a. The Aviation and Transportation Security Act applied the personnel management
system of the FAA to TSA employees, and further authorized TSA to make any
modifications to the system it considered necessary. See 49 U.S.C. § 114(n). TSA was
provided further flexibility under the Aviation and Transportation Security Act for the
employment of its screener personnel. See section 111(d) of Pub. L. No. 107-71, 115 Stat.
597, 620 (Nov. 19, 2001). 49 U.S.C. § 44935 note.
7
OPM issued interim rules in 1978. See 43 Fed. Reg. 46288, October 6, 1978. In 1986,
OPM adopted these interim rules as final. See 51 Fed. Reg. 23036, June 25, 1986. OPM
regulations are found at 5 C.F.R. part 550, subpart J.
8
Premium pay provisions for overtime work in subpart A of Part 550 of Title 5, Code of
Federal Regulations, and section 7 of the Fair Labor Standards Act of 1938 (FLSA), as
amended, codified at 29 U.S.C. §§ 201-219. The FLSA establishes standards for
minimum wage and overtime pay.
Page 4 GAO-13-96 Religious Accommodations
• when deciding whether an employee’s request for an adjusted work
schedule should be approved, a supervisor should not make any
judgment about the employee’s religious beliefs or his or her affiliation
with a religious organization;
• a supervisor may deny an employee’s request if modifications of an
employee’s work schedule would interfere with the efficient
accomplishment of the agency’s mission;
• an employee should specifically state that his or her request for an
adjusted work schedule is for religious purposes and should provide
acceptable documentation of the need to abstain from work;
• if an employee’s request is approved, a supervisor may determine
whether the alternative work hours will be scheduled before or after
the religious observance;
• an employee should be allowed to accumulate only the number of
hours of work needed to make up for previous or anticipated
absences from work for religious observances; and
• if an employee is separated or transferred before using the time set
aside for religious observances, any hours not used must be paid at
the employees rate of basic pay in effect when the extra hours of work
were performed.
In 2005, OPM proposed revisions to the regulations that would have
standardized procedures and definitions concerning compensatory time
for religious accommodation. 9 OPM proposed that agencies must require
employees to perform the compensatory overtime within three pay
periods after taking advanced compensatory time off for religious
observance, and that agencies may require employees seeking time off to
provide documentation to ensure the legitimacy of their request. 10 The
9
See 70 Fed. Reg. 1068, January 5, 2005.
10
According to OPM officials, the proposed revisions were part of a larger package and no
specific event prompted revisions to regulations on compensatory time for religious
accommodation.
Page 5 GAO-13-96 Religious Accommodations
proposed regulations were published and OPM received comments but
took no further action. 11
EEOC is responsible for, among other things, providing guidance to
employers concerning religious discrimination and for adjudicating
discrimination complaints and hearing appeals brought by complainants
from federal agencies. EEOC has issued regulations requiring that
agencies “[m]ake reasonable accommodations to the religious needs of
applicants and employees when those accommodations can be made
without undue hardship on the business of the agency.” 12 EEOC also has
issued guidance suggesting that employers adopt flexible leave and
scheduling policies and facilitate voluntary substitutions and shift swaps
to enable employees to practice their religion.
Table 1 provides information on occupation types and staffing levels
within each of these agencies, including the department in which each is
located and the number of LEO and ATSS personnel in each agency.
11
According to OPM officials, OPM decided not to complete and issue the regulations after
commenters expressed concern about the proposal to require documentation for requests
for compensatory time off for religious observances (that the requirement was not clear or
that it might require agencies to make judgments about the legitimacy of religious
observance) and about the proposal to allow three pay periods to earn compensatory time
after taking time off for religious observance (some commenters thought this was too
restrictive).
12
29 C.F.R. § 1614.102(a)(7).
Page 6 GAO-13-96 Religious Accommodations
Table 1: Law Enforcement Officers and Air Transportation Safety and Security Personnel in Selected Agencies
Percentage of total
population of law
Number of air enforcement officers
transportation and air transportation
Number of law safety and safety and security
enforcement security personnel
Department Agency OPM group officers personnel represented
Department of U.S. Customs and Border Protection
Homeland Security Customs and Border 21,362 7.8%
Protection Officer GS-1895
Border Patrol Agent Series 21,302 7.8
GS-1896
U.S. Immigration and Customs Enforcement
General Inspection, 6,148 2.2
Investigation, and
Compliance Series GS-1801
Criminal Investigating Series 6,976 2.5
GS-1811
Transportation Security Administration
Transportation Compliance Inspection and 51,804 18.9
security officers Support Series SV-1802
a
Federal Air Marshal SV-180
Department of Bureau of Prisons
Justice
Correctional officers Correctional Officer Series 17,826 6.5
GS-0007
Other correctional law 18,260 6.7
enforcement officers
Federal Bureau of Criminal Investigating Series 13,816 5.0
Investigation GS-1811
Department of Federal Aviation Air Traffic Control Series 20,387 7.4
Transportation Administration GS-2152
Department of Internal Revenue Criminal Investigating Series 2,665 1.0
Treasury Service GS-1811
b
Total law enforcement officer and air transportation safety and 108,355 72,191 66.0%
security personnel represented
Source: GAO analysis of most recently available data in OPM’s Central Personnel Data File as of March 2012.
Note: For purposes of this report, we are defining “law enforcement officer” as an individual
authorized to perform any of four specific functions: (1) conduct criminal investigations, (2) execute
search warrants, (3) make arrests, or (4) carry firearms. In addition, some of these law enforcement
officers are responsible for care and custody of convicted offenders. We defined ATSS personnel to
include TSA federal air marshals and passenger and baggage screeners/handlers, or transportation
security officers, and FAA’s air traffic controllers based on the OPM’s occupational groups and
descriptions as well as agency job descriptions and other information from agency websites.
a
The total number of federal air marshals is sensitive security information.
Page 7 GAO-13-96 Religious Accommodations
b
Total number of LEOs and ATSS combined as identified in OPM’s Central Personnel Data File is
approximately 273,667. Total does not include TSA’s federal air marshals.
Some Agency Policies
on Compensatory
Time off for Religious
Observances May Not
Be Subject to or
Consistent with OPM
Regulations or
Guidance; Rationales
for Policies Vary
Agency Policies Share All seven of the agencies in our review, including the two agencies not
Similarities That Support subject to section 5550a, have written policies supporting an employee’s
Compensatory Time off for ability to earn and use compensatory time off for religious observances. 13
The agency policies include varied amounts of detail, but in most cases
Religious Observances
they outline who may earn and use compensatory time off for religious
observances and how and when such compensatory time may be sought.
Two of the agencies—BOP and FBI—are covered by DOJ’s policy. The
remaining five agencies—CBP, ICE, TSA, FAA, and IRS—have their own
agency policies and are not covered by department-wide policies.
The agency policies are similar in several ways including: (1) employee
eligibility, (2) applicability across geographic locations, (3) schedule
planning, and (4) implementation. First, all of the agencies have policies
that cover all occupational groups and none include language in their
policies that make a distinction between the eligibility of LEOs and non-
LEOs or ATSS and non-ATSS personnel. However, while FAA’s policy
applies to all employees, the policy is superseded by a collective
13
As noted, FAA and TSA are not subject to 5 U.S.C. § 5550a and are therefore not
required to make compensatory time off for religious observances available to their
employees; however, both agencies have policies that do make compensatory time off for
religious observances available.
Page 8 GAO-13-96 Religious Accommodations
bargaining agreement that allows the air traffic controller bargaining unit
employees to use only annual leave for religious observances, according
to FAA officials. 14 As a result, the bargaining unit employees are unable to
earn and use compensatory time off for religious observances, although
all other FAA employees may do so. 15
Second, all agency policies apply to all of the agencies’ geographical
locations and all facilities, regardless of a facility’s size or the number of
employees who work there. All of the agencies in our review have
numerous locations, facilities, and installations, such as airports and
federal prisons, of varying size and purpose with thousands of employees
spread across the country. Despite the geographic diversity, all agency
employees at every facility and installation have the same ability to seek
compensatory time off for religious observances, with the aforementioned
exception of air traffic controller bargaining unit employees at FAA.
Third, all of the agency policies provide employees with flexibility to plan
their schedules. Typically an employee earns compensatory time off for
religious observances by performing work outside of his or her normal
duty hours. All of the agency policies allow their employees the flexibility
to earn this compensatory time both before and after the religious
accommodation has been made. In addition, none of the policies include
caps or other numerical limits on the amount of compensatory time that
can be earned and used.
14
Although the FAA has approximately 22,347 air traffic controllers, as shown in table 1,
not all are subject to the negotiated restriction on using compensatory time off for religious
observances. Approximately 15,000 air traffic controllers are subject to the restriction in
the collective bargaining agreement and other approximately 7,000 either are in a different
bargaining unit with an agreement that permits the use of compensatory time off for
religious observances or not in a bargaining unit and thus fall under FAA management
policy, which also permits the use of compensatory time off for religious observances.
15
According to FAA officials, the bargaining union negotiated with the FAA to offer only
annual leave for religious observance. A 2008 Federal Claims Court decision held that
FAA did not have the authority to provide its employees with regular compensatory time
for overtime worked instead of paying employees at the overtime rate required by FLSA.
The court found that the statute providing FAA with flexibility in establishing a new
personnel management system (49 U.S.C. § 40122(g)) removed FAA’s authority (under 5
U.S.C. §§ 5543 and 6123) to grant regular compensatory time in lieu of overtime pay
under FLSA. See Abbey v. United States, 82 Fed. Cl. 722 (2008). In light of the Abbey v.
United States decision, the FAA and the union negotiated that employees also could not
earn compensatory time off for religious observances for overtime worked, but could use
annual leave for religious observance.
Page 9 GAO-13-96 Religious Accommodations
Lastly, through interviews with agency officials, we also identified
similarities in the ways agencies implement their policies, which further
support employees’ ability to seek compensatory time off for religious
observances. First, all agencies we reviewed notify their employees of
their right by law to file a complaint of discrimination. ICE provides this
information in its religious accommodation policy, which states that any
employee who believes he or she has been discriminated against based
on religious practices may file an equal employment opportunity (EEO)
complaint. Other agency officials stated that employees have the right to
file an EEO complaint of discrimination if their request for compensatory
time off for religious observances was denied. For example, officials at
CBP stated that whenever a supervisor or other decision maker denies an
employee’s religious accommodation request, the supervisor issues a
written decision to the employee specifying why the request was denied
and notifies the employee of his or her right to file an informal EEO
complaint within 45-calendar days from the date of receiving the
response. However, with the exception of ICE, information on how to file
EEO complaints is not included in agencies’ policies. 16 In addition,
employees covered by collective bargaining agreements (CBA) may also
file grievances with the agencies or through their unions and may be
informed of such a process by their union representative.
Each agency we reviewed also provides managers and supervisors with
diversity training that includes some information on religious
accommodations in general, although agencies vary in whether they
specifically cover issues on religious compensatory time off. As we have
previously reported, diversity training can help an organization’s
management and staff increase their awareness and understanding of
diversity as well as develop concrete skills to assist them in
communicating with a diverse workforce. 17 Such training can provide
employees with an awareness of their differences—including cultural,
work style, and personal presentation—and an understanding of how
diverse perspectives can improve organizational performance. In our
review, some agencies provide training on sensitivity and awareness of
religious accommodations, such as accommodations for dress and
16
Such guidance may be found in other agency documents; however, we did not include
them in the scope of our review.
17
GAO, Diversity Management: Expert-Identified Leading Practices and Agency
Examples, GAO-05-90 (Washington, D.C.: Jan. 14, 2005).
Page 10 GAO-13-96 Religious Accommodations
personal grooming, while others provide additional information on
schedule adjustments for religious observances. ICE provides its
managers and supervisors with information on EEOC’s definition of
religion, governing laws, and the duty of the agency to provide reasonable
accommodations. CBP’s awareness training for supervisors provides
examples of different methods for providing schedule adjustments for
religious accommodations other than compensatory time off for religious
observances, such as voluntarily swapping shifts with other employees.
For some agencies, the additional EEO training and information
complements language included in policy outlining management’s
responsibility regarding approval of religious accommodation requests.
For example, TSA’s policy states that management should not make any
judgment about the employee’s religious beliefs when deciding whether
an employee’s request for an adjusted work schedule should be
approved.
Finally, all of the agencies use automated time and attendance systems
to record data on earned and used compensatory time off for religious
observances, as stated in OPM’s regulations. Supervisors can use data in
time and attendance systems to monitor the number of hours employees
are accumulating or using and to determine whether employees are
within the cap for the number of pay periods outlined in the agency policy
guidance. Some systems enable the employee to submit automated
requests directly to their supervisor. For example, ICE states in its policy
that employees are to make official requests for compensatory time
through the agency’s time and attendance system. IRS states in its policy
that first-level supervisors are to use the agency time and attendance
system to maintain records of compensatory time off for religious
observances earned and used. None of the agencies in our review told us
that management routinely reviews the level of compensatory time off for
religious observances requested, accrued, or used, and the agencies
have no requirement to report out on such data.
Policy Differences Exist Several differences exist in the way agencies administer their policies on
and OPM Regulations Do compensatory time off for religious observances. These differences fall
Not Specify Proper into different categories: (1) caps on the number of pay periods to earn
and use compensatory time off for religious observances, (2) repaying
Administration of Unused compensatory time off for religious observances that was taken in
Compensatory Time off for advance, (3) the forms or other documentation required to make the
Religious Observances request and the reason for request, (4) other types of schedule
adjustments referenced in the policy, and (5) disposition of unused
Page 11 GAO-13-96 Religious Accommodations
compensatory time off for religious observances. See table 2 for
additional information.
Table 2: Agency Policies Display Differences in Several Categories
Consequences of
not earning Disposition of
compensatory time unused
off for religious Forms or Other types of compensatory time
observances taken documentation required schedule adjustments off for religious
Agencies Pay period cap in advance and reason for request referenced observances
CBP Earn and use in Annual leave taken • Oral request • Annual leave Employee time is
five pay periods; to eliminate negative currently, but drafting • Leave-without-pay converted to regular
three pay periods balance a policy to use (LWOP) compensatory time,
to repay advanced request form in the although CBP officials
future, according to • Requests to make
use compensatory state that any
agency officials other reasonable
time subsequent
arrangements if
• Policy does not liquidation of such
such arrangements
address whether time is at the basic
do not cause undue
employees need to pay rate
hardship on the
provide a reason for business of CBP
the request
ICE Earn and use in Annual leave or • Request through time • Flexible scheduling Employee forfeits
six pay periods; six leave without pay and attendance • Time and place to unused time (based
pay periods to taken, as system (based on pray on CBA)
repay appropriate (based CBA)
• Other workplace
compensatory time on CBA) • No reason required practices, policies,
taken in advance as a general rule and/or practices
based on (based on CBA)
collective
bargaining
agreement (CBA)
TSA Earn and use in Required to liquidate • Written request to • Available Employee receives
two pay periods; the indebtedness— supervisor in compensatory time payment at the
employees not required to make a advance of date off in lieu of nonovertime rate at
allowed to “bank” payment at the non- • Request should overtime pay time of separation
excess overtime rate specifically states • Available from TSA
compensatory time that it is for religious compensatory time
off for an unknown purposes off for travel
future use
• LWOP
• Accrued and
accumulated,
advance annual
leave
• Adjusted work
schedules
• Shift swaps for
transportation
security officers
Page 12 GAO-13-96 Religious Accommodations
BOP and the Earn and use in Annual leave or • OPM’s Standard • No additional Employee forfeits
a
FBI six periods LWOP taken (as Form 71, Application adjustments unused time
requested by the for Leave, or other detailed
employee) form prescribed by
the department,
agency, or approving
official
• OPM’s Standard
Form 71 does not
provide specifically
for compensatory
time off for religious
observances
• Policy does not
address whether
employees need to
provide a reason for
b
the request
FAA No cap detailed in Annual leave, use of • Written request for an • Annual leave Employee paid at the
c
policy credit hours, or adjusted work • Use of credit hours rate of basic pay in
LWOP taken schedule in advance effect when the extra
• LWOP
• Request must hours were worked,
specifically state that should he or she
the request for an separate or transfer
adjusted work before using the
schedule is for compensatory time
religious purposes set aside for religious
observances
IRS Earn and use in Annual leave or • Written request to • Annual leave Employee paid at the
120 days LWOP taken as take compensatory • LWOP rate of basic pay at
appropriate time off for a specific the time the work was
religious observance • Previously earned
performed when
that identifies the compensatory time
separating
need to abstain from in lieu of overtime
work • Change to their
• Request should regularly scheduled
identify the need to tour of duty to
abstain from work accommodate their
personal religious
beliefs
Source: GAO analysis of agency policies and CBAs.
a
DOJ’s policy covers all of its agencies.
b
DOJ’s Leave Administration Policy allows other “forms” than the Standard Form 71, and allows its
agencies to make the determination as to how employees must request leave. The FBI has decided
that employees should present and document these requests through their time and attendance
system. In addition, an employee may make a request of their supervisor in writing or orally, and then
follow up in their time and attendance system to document the transaction.
c
CBA for air traffic controllers does not allow for these personnel to earn compensatory time off for
religious observances. They may only use annual leave.
Since each agency has a different mission and different requirements of
its employees, agencies developed and administered policies on
Page 13 GAO-13-96 Religious Accommodations
compensatory time off for religious observances to fit their individual
needs. Most of the differences are consistent with OPM regulations and
guidance or otherwise within the discretion of the agency in administering
compensatory time off for religious observances. In fact, OPM officials we
spoke with stated that policies on compensatory time off for religious
observances should not be “one-size-fits-all” and OPM recognizes
agencies may have different requirements.
Moreover, all of the agencies reported few or no issues and cases within
their respective agencies on administering compensatory time off for
religious observances, including denying requests or granting schedule
adjustments. OPM commented that a few issues had been raised at one
agency concerning certain aspects of compensatory time off for religious
observances over the last 5 years and have been resolved. Otherwise,
according to OPM officials, they have not observed any practical
problems with agencies administering the regulations nor have they
received any questions or comments from EEOC concerning
administration of the regulations. EEOC commented that employees have
filed few cases of discrimination related to requests for a schedule
change or adjustment for religious observances. We interviewed union
officials from the Council of Prison Locals in the American Federation of
Government Employees, National Air Traffic Controllers Association, and
National Treasury Employees Union that represent bargaining units at
agencies with union representation and none of them reported problems
within their constituencies concerning requesting compensatory time off
for religious observances or denials of compensatory time off for religious
observances requests. Finally, we interviewed representatives of LEO
associations and they also reported no problems within their groups
concerning requesting compensatory time off for religious observances or
denials of compensatory time off for religious observances requests.
Even so, while some differences in policy reflect the individual needs of
agencies in our review, in one area the differences in policy may reflect a
lack of clarity in OPM regulations. Specifically, regarding the disposition of
unused compensatory time off for religious observances, CBP’s policy
provides for conversion of unused compensatory time off for religious
observances to regular compensatory time, which is not clearly
authorized under section 5550a and OPM regulations, based on our
discussions with OPM. The ICE and DOJ policies provide for the
forfeiture of unused compensatory time off for religious observances
which is contrary to OPM guidance providing that unused compensatory
time off for religious observances is to be paid off at the rate of basic pay
in effect when earned upon an employee’s separation or transfer.
Page 14 GAO-13-96 Religious Accommodations
CBP’s policy states that unused compensatory time off for religious
observances will be converted to regular compensatory time at the end of
five pay periods and will be subject to the regulations which govern
regular compensatory time. 18 Under OPM regulations addressing the
liquidation of regular compensatory time, payment is generally at the
overtime rate. 19 Yet, CBP officials told us that they do not intend for
employees to receive the overtime rate of pay upon liquidation of
compensatory time off for religious observances which has been
converted to regular compensatory time and state that controls in their
time and attendance system ensure that unused compensatory time off
for religious observances is paid at the rate of basic pay. Moreover, CBP
officials said they recognize that the language in their policy could be
misconstrued as permitting liquidation of the converted compensatory
time at the overtime rate of pay and will take it into consideration when
renegotiating policies in upcoming discussions with the union. According
to CBP officials, the policy provision providing for the conversion of
compensatory time off for religious observances to regular compensatory
time was at the request of the union. The negotiability of this provision
was challenged by the agency as inconsistent with OPM regulations on
compensatory time off for religious observances but a decision by the
Federal Labor Relations Authority (FLRA) concluded that converting
unused compensatory time off for religious observances into regular
compensatory time was not prohibited by OPM regulations and was
therefore subject to collective bargaining. 20 The decision did not address
the liquidation of such compensatory time.
Noting a lack of analysis supporting the FLRA’s conclusion, a Senior
Counsel in OPM’s Office of the General Counsel, stated that the
conversion of unused compensatory time off for religious observances to
regular compensatory time is contrary to section 5550a and OPM’s
implementing regulations, even assuming that liquidation of such
18
CBP’s parent department, DHS, does not have a department-wide policy on
compensatory time off for religious observances.
19
5 C.F.R. § 550.114 and § 551.531.
20
46 F.L.R.A. 696 (Nov. 27, 1992).
Page 15 GAO-13-96 Religious Accommodations
converted leave is at the rate of basic pay in effect when earned. 21 In
OPM’s view, compensatory time off for religious observances and regular
compensatory time are different forms of compensatory time off that are
separately authorized, serve different purposes, and are subject to
differing conditions for earning, using, retaining, as well as liquidating. 22
We have previously affirmed OPM’s view that these two forms of
compensatory time off are to be regarded as separate and distinct kinds
of entitlements. 23
OPM’s regulations on compensatory time off for religious observances do
not specifically address the proper treatment of unused compensatory
time off for religious observances. Further, ICE and DOJ’s policies require
their employees to forfeit earned compensatory time off for religious
observances if it has not been used within a certain number of pay
periods, which may result in employees not being paid for time that they
have earned. OPM officials said they have concerns about such
forfeitures since employees did earn the time. One OPM official stated
that earned compensatory time off for religious observances should
remain to the credit of the employee until separation or transfer, and, as
specified in OPM guidance, then liquidated at the regular rate of pay in
effect when earned. However, these OPM officials recognize that section
5550a and OPM’s regulations do not prohibit forfeiture and that OPM’s
guidance providing for the proper disposition of unused compensatory
time off for religious observances is not binding on agencies, but serves
as meaningful advisement for agencies in applying the law and
regulations for compensatory time off for religious observances off. OPM
21
In this regard, we note that when FLRA decisions are subject to judicial review by
federal courts of appeal, those courts do not accord deference to an FLRA interpretation
of a statute or regulation that it does not administer, such as would be the case here
where OPM has been charged with the responsibility to administer both regular overtime
and compensatory time off for religious observances provisions. United States Dept. of the
Air Force v. FLRA, 952 F.2d. 446 (D.C. Cir. 1991) and IRS v. FLRA, 521 F.3d 1148 (Ninth
Cir. 2008).
22
For rules addressing regular compensatory time for those exempt or non-exempt from
the minimum wage and overtime provisions of FLSA, see 5 U.S.C. § 5543 and 5 C.F.R. §
550.114 (covering FLSA exempt employees) and 5 C.F.R. § 551.531 (covering FLSA
nonexempt employees).
23
See 62 Comp. Gen. 589 (1983) wherein we concluded that compensatory time off for
religious observances is not subject to the aggregate salary limitation under 5 U.S.C. §
5547 which serves to limit the amount of regular compensatory time earned in lieu of
monetary compensation for overtime work performed.
Page 16 GAO-13-96 Religious Accommodations
officials also said they are drafting updated regulations that they believe
will address the disposition of unused compensatory time off for religious
observances among other things, but have not established a timetable for
completing their internal review of the proposed regulations. OPM officials
plan to complete their process for drafting the proposed regulations
sometime next year. Without such clarification on the disposition of
unused compensatory time off for religious observances in OPM’s
regulations, agencies may have policies that are not consistent with
OPM’s views on the proper disposition of unused compensatory time off
for religious observances.
Agencies Have Various We discussed with department and agency officials the reasons why their
Rationales for Developing agencies adopted specific policy provisions, such as time limitations. In
Their Policies on most cases, officials said the agencies followed existing federal rules
when developing policies and that they wanted to provide their employees
Compensatory Time off for with additional scheduling flexibility. However, two agencies—IRS and
Religious Observances CBP—made or are making changes to their compensatory time off for
religious observances policies based on findings by their department’s
Inspector General or EEOC.
• IRS developed its current policy following an August 2009 report by
the Treasury Inspector General for Tax Administration (TIGTA). In
March 2006, IRS had identified 42 employees as having balances
from 101 to 305 hours of compensatory time off for religious
observances. By February 2008, 18 of these employees still had
balances of 80 hours or more, an amount equivalent to 2 weeks, or
one pay period, and that TIGTA considered being an excessive
balance. TIGTA identified that IRS needed additional controls to
address such potential abuse as excess accumulation of
compensatory time off for religious observances, and according to
agency officials, IRS’s current policy was designed to comply with this
recommendation.
• CBP officials stated the agency is modifying its policy based on a
2009 EEOC administrative judge decision that included a finding that
CBP failed to facilitate voluntary swaps of work schedules. 24 As a
result, CBP established a formal process for employees requesting
24
The administrative judge’s 2009 decision was affirmed on appeal and a request for
reconsideration was denied in 2011.
Page 17 GAO-13-96 Religious Accommodations
religious accommodations. The directive was forwarded to the
agency’s commissioner of June 11, 2012, where it is awaiting final
agency approval.
Overall, the seven agencies we reviewed have policies in place for
Conclusion employees to adjust their work schedules to engage in religious
observances. While most of the agencies reviewed have policies that
permit employees to earn and use compensatory time to meet religious
obligations, many of FAA’s air traffic controllers may only take annual
leave for religious observances due to their collective bargaining
agreement. Many agency policies showed similarities but varied in areas
such as caps for the number of pay periods employees can earn and use
compensatory time and on the disposition of unused compensatory time.
OPM prescribed regulations for the administration of compensatory time
off for religious observances as required but these regulations do not
address all aspects of implementing such a policy and some confusion
exists. Specifically, agencies may be instituting practices in areas such as
disposition of unused compensatory time off for religious observances in
a way that OPM views as unauthorized or inconsistent with the proper
administration of this authority. OPM has an opportunity to provide
agencies with clarification on the administration of compensatory time off
for religious observances but does not have a firm timetable for
completing its internal review of proposed revised regulations. Unless
OPM clarifies its regulations and works with agencies such as CBP to
revise its policy, there is a continued risk agencies’ religious
accommodation leave policies will not be in accordance with the proper
administration of this authority.
To ensure agency compensatory time off for religious observances
Recommendations for policies are in accordance with the proper administration of OPM’s
Executive Action regulations on compensatory time off for religious observances, we
recommend the Director of OPM take the following actions:
• Establish time frames for the internal process of finalizing proposed
revised regulations for compensatory time off for religious
observances. Such revised regulations should provide clarification in
areas such as the disposition of unused compensatory time off for
religious observances.
• Work with CBP to ensure its policies and practices regarding its
disposition of unused compensatory time off for religious observances
Page 18 GAO-13-96 Religious Accommodations
are in compliance with section 5550a and OPM’s implementing
regulations.
We provided a draft of this report to OPM, DOJ, DOT, DHS, and Treasury
Agency Comments for review and comment. 25 In commenting on a draft of this report, OPM
agreed with our recommendations. OPM said compensatory time off for
religious observances off is an important human resource tool to support
the needs of federal employees. Regarding our first recommendation,
OPM agreed to issue proposed regulations in 2013 but did not commit to
an exact time frame due to the numerous steps needed to review,
consider public comments, and finalize draft regulations, including
submission to the Office of Management and Budget for interagency
clearance. OPM agreed with our second recommendation and will assist
CBP in complying with the law and OPM’s regulations for both
compensatory time off for religious observances off and regular
compensatory time off. OPM believes that although its guidance for
providing for the proper disposition of unused religious compensatory
time off is not binding on agencies. CBP should comply with this guidance
until OPM issues explicit regulations to cover this matter. DHS also
agreed with our recommendation and stated it will work to ensure its
policies and practices comply with OPM’s regulations. OPM, DOJ, DOT,
DHS, and Treasury provided technical comments, which we incorporated
where appropriate.
As agreed with your offices, unless you publicly announce the contents of
this report earlier, we plan no further distribution until seven days from the
report date. At that time, we will send copies to other interested
congressional committees; the Secretaries of Homeland Security,
Transportation, and Treasury; the Attorney General and the Directors of
the U.S. Office of Personnel Management, U.S. Customs and Border
Protection, Federal Aviation Administration, Federal Bureau of
Investigation, Federal Bureau of Prisons, U.S. Immigration and Customs
Enforcement, Internal Revenue Service, and Transportation Security
Administration. In addition, the report will be available at no charge on the
GAO website at http://www.gao.gov.
25
This report number changed to GAO-13-96 after we provided agencies with the draft
report GAO-12-921 for comment.
Page 19 GAO-13-96 Religious Accommodations
If you or your staff have any questions about this report, please contact
me at (202) 512-2717 or jonesy@gao.gov. Contact points for our Offices
of Congressional Relations and Public Affairs may be found on the last
page of this report. GAO staff who made key contributions to this report
are listed in appendix IV.
Sincerely yours,
Yvonne D. Jones
Director, Strategic Issues
Page 20 GAO-13-96 Religious Accommodations
Appendix I: Objectives, Scope, and
Appendix I: Objectives, Scope, and
Methodology
Methodology
In response to your request we identified the similarities and differences
in policies of selected agencies concerning compensatory time off for
religious observances for law enforcement officers (LEO) and air
transportation safety and security (ATSS) personnel and described their
rationale for adopting the policies.
We selected seven federal agencies for our review. These agencies had
a substantial concentration of LEO and ATSS personnel. Based on our
previous work, we defined a LEO as an individual authorized to perform
any of four specific functions: (1) conduct criminal investigations, (2)
execute search warrants, (3) make arrests, or (4) carry firearms. 1 In
addition, some of these law enforcement officers are responsible for care
and custody of convicted offenders. We defined ATSS personnel to
include Transportation Security Administration’s (TSA) federal air
marshals and passenger and baggage screeners/handlers, or
transportation security officers, and Federal Aviation Administration’s
(FAA) air traffic controllers based on the U.S. Office of Personnel
Management’s (OPM) occupational groups and descriptions as well as
agency job descriptions and other information from agency websites. We
consulted with you and with our Applied Research and Methodology team
on the engagement scope.
Using data from OPM’s Central Personnel Data File, we selected six
agencies with over 10,000 LEOs and ATSS employees based on their
OPM occupational group and description, including personnel in the
correctional officer series and the investigation and transportation groups.
These included three components in the Department of Homeland
Security—U.S. Customs and Border Protection, U.S. Immigration and
Customs Enforcement, and TSA; two components in the Department of
Justice—Federal Bureau of Investigation and Federal Bureau of Prisons;
and one agency in the Department of Transportation—FAA. We selected
the seventh agency, the Internal Revenue Service, because of their
unique role in criminal investigations of tax matters. We believe the
Central Personnel Data File data are sufficiently reliable for our purposes.
To accomplish our objectives, we evaluated agency policies and other
documentation and identified similarities and differences in compensatory
1
GAO, Federal Law Enforcement; Survey of Civilian Law Enforcement Functions and
Authorities, GAO-07-121 (Washington, D.C.: Dec. 19, 2006).
Page 21 GAO-13-96 Religious Accommodations
Appendix I: Objectives, Scope, and
Methodology
time off for religious observances. We also reviewed applicable federal
statutes and regulations, as well as proposed regulations, and executive
branch policies and guidance. Since OPM is responsible for administering
the statute on compensatory time off for religious observances and the
U.S. Equal Employment Opportunity Commission (EEOC) is responsible
for enforcing the federal antidiscrimination statute requiring religious
accommodation, we interviewed officials from each on their duties and
responsibilities concerning accommodations for federal employees and
reviewed applicable EEOC cases. We developed a structured interview
instrument to discuss agency policies on schedule adjustment for
religious accommodation, and the rationale for such policies, with human
resource/human capital officials, field supervisors, and civil rights/diversity
officials, from selected agencies and their ‘parent’ departments. We also
interviewed LEO association representatives as well as union
representatives from the Council of Prison Locals in the American
Federation of Government Employees, National Air Traffic Controllers
Association, and National Treasury Employees Union about whether,
from their viewpoint and the viewpoint of those they represented, there
were any problems or concerns with schedule accommodation or
compensatory time for religious observance at the selected agencies.
For purposes of this report, we defined schedule adjustments as anything
that would require an employee to make modifications to his or her
assigned schedule for religious purposes. This could include requesting
compensatory time off for religious observances, using annual leave or
leave without pay, or requesting schedule changes or shift swaps
We conducted this performance audit from December 2011 through
October 2012 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit to
obtain sufficient, appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives.
Page 22 GAO-13-96 Religious Accommodations
Appendix II: Comments from the Office of
Appendix II: Comments from the Office of
Personnel Management
Personnel Management
Page 23 GAO-13-96 Religious Accommodations
Appendix II: Comments from the Office of
Personnel Management
Page 24 GAO-13-96 Religious Accommodations
Appendix II: Comments from the Office of
Personnel Management
Page 25 GAO-13-96 Religious Accommodations
Appendix III: Comments from the
Appendix III: Comments from the Department
of Homeland Security
Department of Homeland Security
Page 26 GAO-13-96 Religious Accommodations
Appendix IV: GAO Contact and Staff
Appendix IV: GAO Contact and Staff
Acknowledgment
Acknowledgment
Yvonne D. Jones, (202) 512-2717 or jonesy@gao.gov
GAO Contact
In addition to the contact named above Signora May, Assistant Director;
Staff Steven J. Berke; Dewi Djunaidy; Karin Fangman; Robert Gebhart; and
Acknowledgments Greg Wilmoth made key contributions to this report.
(450953)
Page 27 GAO-13-96 Religious Accommodations
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